[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
H.R. 1507, THE WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2009
=======================================================================
HEARING
before the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
ON
H.R. 1507
TO AMEND CHAPTER 23 OF TITLE 5, UNITED STATES CODE, RELATING TO
DISCLOSURES OF INFORMATION PROTECTED FROM PROHIBITED PERSONNEL
PRACTICES, AND FOR OTHER PURPOSES
__________
MAY 14, 2009
__________
Serial No. 111-9
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
http://www.house.gov/reform
U.S. GOVERNMENT PRINTING OFFICE
51-323 PDF WASHINGTON : 2009
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC
area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC
20402-0001
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
EDOLPHUS TOWNS, New York, Chairman
PAUL E. KANJORSKI, Pennsylvania DARRELL E. ISSA, California
CAROLYN B. MALONEY, New York DAN BURTON, Indiana
ELIJAH E. CUMMINGS, Maryland JOHN M. McHUGH, New York
DENNIS J. KUCINICH, Ohio JOHN L. MICA, Florida
JOHN F. TIERNEY, Massachusetts MARK E. SOUDER, Indiana
WM. LACY CLAY, Missouri TODD RUSSELL PLATTS, Pennsylvania
DIANE E. WATSON, California JOHN J. DUNCAN, Jr., Tennessee
STEPHEN F. LYNCH, Massachusetts MICHAEL R. TURNER, Ohio
JIM COOPER, Tennessee LYNN A. WESTMORELAND, Georgia
GERRY E. CONNOLLY, Virginia PATRICK T. McHENRY, North Carolina
MIKE QUIGLEY, Illinois BRIAN P. BILBRAY, California
MARCY KAPTUR, Ohio JIM JORDAN, Ohio
ELEANOR HOLMES NORTON, District of JEFF FLAKE, Arizona
Columbia JEFF FORTENBERRY, Nebraska
PATRICK J. KENNEDY, Rhode Island JASON CHAFFETZ, Utah
DANNY K. DAVIS, Illinois AARON SCHOCK, Illinois
CHRIS VAN HOLLEN, Maryland
HENRY CUELLAR, Texas
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
PETER WELCH, Vermont
BILL FOSTER, Illinois
JACKIE SPEIER, California
STEVE DRIEHAUS, Ohio
------ ------
Ron Stroman, Staff Director
Michael McCarthy, Deputy Staff Director
Carla Hultberg, Chief Clerk
Larry Brady, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on May 14, 2009..................................... 1
Text of H.R. 1507................................................ 8
Statement of:
De, Rajesh, Deputy Assistant Attorney General, Office of
Legal Policy, Department of Justice........................ 54
Fisher, Louis, Special Assistant to the Law Librarian of
Congress, the Law Library of Congress; Robert F. Turner,
professor, associate director, Center for National Security
Law, University of Virginia School of Law; Thomas Devine,
legal director, Government Accountability Project; Angela
Canterbury, director of advocacy, Public Citizen, Congress
Watch Division; Michael German, policy counsel, American
Civil Liberties Union; and David Colapinto, general
counsel, National Whistleblowers........................... 110
Canterbury, Angela....................................... 185
Colapinto, David......................................... 228
Devine, Thomas........................................... 151
Fisher, Louis............................................ 110
German, Michael.......................................... 214
Turner, Robert F......................................... 132
Greenhouse, Bunnatine H., former Procurement Executive and
Principal Assistant Responsible for Contracting [PARC],
U.S. Army Corps of Engineers; Franz Gayl, Science and
Technology Advisor to the Deputy Commandant for Plans,
Policies and Operations/Deputy Branch Head, U.S. Marine
Corps; and Teresa Chambers, former Chief, U.S. Park Police. 74
Chambers, Teresa......................................... 98
Gayl, Franz.............................................. 80
Greenhouse, Bunnatine H.................................. 74
Letters, statements, etc., submitted for the record by:
Braley, Hon. Bruce, a Representative in Congress from the
State of Iowa, prepared statement of....................... 262
Canterbury, Angela, director of advocacy, Public Citizen,
Congress Watch Division, prepared statement of............. 187
Chambers, Teresa, former Chief, U.S. Park Police, prepared
statement of............................................... 100
Colapinto, David, general counsel, National Whistleblowers,
prepared statement of...................................... 230
Connolly, Hon. Gerald E., a Representative in Congress from
the State of Virginia, prepared statement of............... 53
De, Rajesh, Deputy Assistant Attorney General, Office of
Legal Policy, Department of Justice, prepared statement of. 58
Devine, Thomas, legal director, Government Accountability
Project, prepared statement of............................. 153
Fisher, Louis, Special Assistant to the Law Librarian of
Congress, the Law Library of Congress, prepared statement
of......................................................... 113
Gayl, Franz, Science and Technology Advisor to the Deputy
Commandant for Plans, Policies and Operations/Deputy Branch
Head, U.S. Marine Corps, prepared statement of............. 82
German, Michael, policy counsel, American Civil Liberties
Union, prepared statement of............................... 216
Greenhouse, Bunnatine H., former Procurement Executive and
Principal Assistant Responsible for Contracting [PARC],
U.S. Army Corps of Engineers, prepared statement of........ 77
Towns, Hon. Edolphus, a Representative in Congress from the
State of New York, prepared statement of................... 4
Turner, Robert F., professor, associate director, Center for
National Security Law, University of Virginia School of
Law, prepared statement of................................. 134
Watson, Hon. Diane E., a Representative in Congress from the
State of California, prepared statement of................. 49
H.R. 1507, THE WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2009
----------
THURSDAY, MAY 14, 2009
House of Representatives,
Committee on Oversight and Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 10:05 a.m., in
room 2154, Rayburn House Office Building, Hon. Edolphus Towns
(chairman of the committee) presiding.
Present: Representatives Towns, Cummings, Kucinich,
Tierney, Clay, Watson, Connolly, Quigley, Van Hollen, and Issa.
Staff present: Beverly Britton Fraser, counsel; Peter Fise,
staff assistant; Linda Good, deputy chief clerk; Adam Hodge,
deputy press secretary; Carla Hultberg, chief clerk; Marc
Johnson, assistant clerk; Mike McCarthy, deputy staff director;
Adam Miles, professional staff member; Jenny Rosenberg,
director of communications; Mark Stephenson, senior policy
advisor; Shrita Sterlin, deputy director of communications; Ron
Stroman, staff director; John Cuaderes, minority deputy staff
director; Charles Phillips, minority chief counsel for policy;
Dan Blankenburg, minority director of outreach and senior
advisor; Adam Fromm, minority chief clerk and Member liaison;
Kurt Bardella, minority press secretary; Chapin Fay and Marvin
Kaplan, minority counsels; and Alex Cooper, minority
professional staff member.
Chairman Towns. The committee will come to order.
First of all, I welcome Ranking Member Issa.
Today's hearing is entitled, ``The Whistleblower Protection
Enhancement Act of 2009.''
H.R. 1507 is an important piece of legislation. This
committee has reported favorably similar legislation on a
bipartisan basis in each of the last two Congresses. The House
of Representatives has twice passed similar bills, once in 2007
with 331 votes, and again as a bipartisan amendment to the
stimulus legislation earlier this year. Unfortunately, the
stimulus amendment was removed in conference with the Senate.
However, this provides us with the opportunity to hear from the
new administration on this reform, to work and engage them on
possible changes to the bill, and to consider the ongoing need
for strong whistleblower protections.
I want to thank Representatives Van Hollen and Platts for
their efforts to support government whistleblowers. As this
committee has long recognized, enhancing whistleblower
protection helps us to fulfill our role of bringing about more
honest, accountable and effective government for the American
people.
Whistleblowers risk their careers to challenge abuses of
power and gross waste of government resources. At a time when
America needs the best value for every dollar spent, we need
these protections now more than ever. This is particularly true
now that billions of stimulus dollars and billions more aimed
at stabilizing the financial system are at stake.
H.R. 1507 will ensure that the Federal employees
responsible for monitoring the financial recovery programs are
not deterred from reporting mismanagement of taxpayer dollars.
Government employees are often in the best position to call
attention to illegality and waste because they witness what is
happening inside the government on a day-to-day basis.
Unfortunately, as we will hear today, under the current
inadequate system, whistleblowers have too often been left out
to dry. Instead of being rewarded for their courage, they are
actually being destroyed in some instances. Over the last
decade, legal victories for public employees have been almost
nonexistent. Employees have been fired and disciplined for
disclosing evidence of waste, fraud and abuse simply because an
administrative judge determined it was part of their job to do
so.
That is contrary to the whole point of the whistleblower
law. If passed, H.R. 1507 would take a landmark step in
restoring Congress' intent to protect employees from
retaliation. Importantly, H.R. 1507 also extends strong
whistleblower protection to employees of government
contractors. Congress wisely included similar protections for
private recipients of stimulus funds; however, no similar
safeguard was included when Congress passed the bailout last
fall. This bill would extend the right to disclose waste, fraud
and abuse without fear of retaliation to employees of all
government contractors, including those who accepted bailout
funds.
The Oversight Committee has documented the accountability
and transparency shortcomings of the TARP program, and we will
continue to do so. However, by empowering insiders to disclose
any financial misconduct, this legislation provides an
immediate accountability fix to that program.
Last, whistleblower protections are important not only in
safeguarding America's tax dollars; we need them to better
protect our families. Toward this end, we have worked closely
with the House Intelligence Committee in drafting strong
whistleblower protections for national security personnel.
Since September 11, 2001, it has become more and more
evident that national security personnel need to be able to
sound the alarm effectively without fear of reprisal and
without having to turn to the media in order to do so. We need
to provide national security personnel with safe, responsible
channels for disclosing evidence of waste, fraud and abuse.
H.R. 1507 also provides these employees with a meaningful
remedy if they are retaliated against, something that does not
exist under current law. This is an important aspect of the
legislation that will strengthen the national security of the
country, and I look forward to hearing more from our witnesses
on this issue.
We're pleased that the administration is testifying today
to express the President's support for the principles of
protecting whistleblowers to offer constructive comments on how
this bill can be strengthened and implemented.
Although whistleblower legislation often involves
disagreement between the executive and the legislative
branches--we understand that--I am encouraged by the efforts to
resolve these differences and promote greater accountability
and transparency in government.
I will close by noting simply that this legislation is
long, long, long overdue. And without whistleblowers and the
unfiltered information that only insiders can provide, the
oversight and investigative functions vested in Congress would
be seriously compromised.
I am pleased to have the opportunity today to hear from the
administration, employees, and experts about this reform.
Now I yield 5 minutes to the ranking member of the
committee, with whom I have worked very hard along with the
sponsors of this bill to get us here today. Congressman Issa
from the great State of California.
[The prepared statement of Hon. Edolphus Towns and the text
of H.R. 1507 follow:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Issa. Thank you, Mr. Chairman. And thank you for
calling this important hearing today and for your bipartisan
support of whistleblower protections and this bill.
We are here today to hear from the administration because
waste, fraud and abuse is the mandate of this committee. The
tools we need in order to undercover waste, fraud and abuse are
our own staff we regularly count on, Government Accountability
Office, the IGs of the various agencies, and absolutely,
without fail, whistleblowers, both in and out of the
government. Without these individuals willing to come forward
and uncover the most dangerous failures within the government,
we would find ourselves exposed from a national security
standpoint, we would find ourselves exposed from a financial
standpoint, and, in this day of increasing litigious activity,
we might often find ourselves the subject as defendants in
lawsuits because of our failure to know what we needed to know.
During this hearing, we will be able to examine current law
that protects whistleblowers and review the need for
strengthening those laws. We will also be able to highlight,
discuss, and explore any issues that may be raised by expanding
existing whistleblower protections. And I might note that these
protections have been contracting because of decisions made by
the courts, so many of the expansions today are, in fact,
simply restoring what was the original intent of Congress.
The support and protection of whistleblowers in the Federal
Government is obviously vital to rooting out the waste, fraud,
and abuse and mismanagement. Expansion of these laws may,
however, raise some important issues and create unintended
real-world consequences when implemented.
We look forward to hearing from the administration any
questions, comments or any scenarios that they believe may not
have been considered in this legislation thus far.
Like all legislation, it can have unintended consequences.
We look forward to active dialog to ensure that we minimize
that, but we cannot allow the continued loss or degradation of
whistleblower laws that today cause us not to have the full
support of both our contractors and our government employees.
Mr. Chairman, I might note that next door in Judiciary, we
moved a very expansive piece of legislation that expands the
ability to sue or profit the American Government at all
levels--Federal, State and local--for Federal protection and
recover moneys. Now, that is well-meaning legislation, it has
been on the books since Abraham Lincoln, and it's important,
but we cannot have just plaintiff trial lawyers doing the work
of the people.
And I might particularly note and ask for unanimous consent
to be included in the record that issues----
Chairman Towns. Without objection, so ordered.
Mr. Issa. Issues, such as the Jane Harman issue where she
was wiretapped, but Congress was unaware that a Member of
Congress had, in fact, been picked up on a wiretap of another
investigation. That was withheld until a whistleblower made it
obvious. So not all whistleblowers involve money or even, per
se, mismanagement, but often can result in us getting need-to-
know information. We cannot allow ourselves not to have that
need-to-know information.
I thank the chairman for his leadership and yield back.
Chairman Towns. At this time I yield 5 minutes to the man
that is really responsible for us being here, a person who has
done a marvelous job on this legislation. The gentleman from
Maryland Mr. Van Hollen is recognized for 5 minutes.
Mr. Van Hollen. Thank you very much, Mr. Chairman. I want
to thank you and Mr. Issa for holding this hearing today, and I
am not going to take my 5 minutes because I want to associate
my remarks with both of the gentlemen, the chairman and the
ranking member.
I've worked very closely with Mr. Platts on this
legislation as well as other members of this committee and
other Members of Congress. As both the chairman and the ranking
member have said, I think we feel it imperative to move forward
and strengthen whistleblower protections. Yesterday the House
passed legislation on a bipartisan basis to strengthen the
procurement rules and regulations of the Department of Defense
so that we could make sure taxpayers were better protected.
This is part of that effort, and we welcome any constructive
suggestions that the witnesses may have to offer.
I thank the chairman.
Chairman Towns. Any other Member seeking recognition?
Mr. Kucinich of Ohio.
Mr. Kucinich. Thank you very much, Mr. Chairman.
Federal employees who do the right thing and expose
wrongdoing that is happening in their job within their sphere
of activity deserve to be thanked, not punished, and yet we
know that various court decisions do not protect employees when
they come forward with information that is vital to the public
interest.
Government isn't some insular game. Government isn't a rule
unto itself. What makes us a democracy is transparency so we
can actually see what's happening, and, if something is going
wrong, that we have a chance to make it right.
The secrecy that has surrounded our government has put our
Nation's democracy in jeopardy, and this approach toward
transparency, which is reflected in the bill that is being
discussed and in Congress' approach to try to restore
whistleblower protection, is really vital to try to restore
trust in government and trust in the Congress' ability not just
to provide oversight, but to make sure that those who have
information feel free to come forward with that information and
not be punished for it.
Thank you, Mr. Chairman. I yield back.
Chairman Towns. I recognize the gentlewoman from California
Ms. Watson.
Ms. Watson. Thank you so much, Mr. Chairman, for today's
hearing on H.R. 1567, the Whistleblower Enhancement Protection
Act of 2009. I am looking forward to hearing about the new
administration's plan to enhance whistleblower protection for
Federal employees and contractors, and hearing testimony from
Federal employees who have faced retaliation for filling their
duty to expose evidence of waste, fraud and abuse.
The healthy functioning of our government and the
likelihood of this committee to properly oversee its operations
depends on the ability of Federal employees and contractors to
report instances of corruption and misuse without fear of
reprisal. For this reason I was pleased to vote for similar
legislation in each of the last Congresses and look forward to
seeing these provisions finally signed into law by our new
President.
Federal employees and contractors are often our first and
only line of defense against government waste and manipulation,
while recent history makes their dual role as civil servants
and watchdogs even more crucial. The unprecedented levels of
government spending in the American Recovery and Reinvestment
Act of 2009 and the current engagements in Iraq and Afghanistan
require detailed oversight from Congress, which would be
impossible without the honest disclosure from Federal employees
and contractors of what is really happening on the ground. It
is critical to our economic and our national security that
Congress is notified of instances of waste, fraud and abuse,
and that these employees are willing and able to share their
information and are able to remain a part of our civil
infrastructure.
And so I would like to thank each of the witnesses today
for their testimony as we seek to strengthen the protections
for those with the courage to fulfill their duties and disclose
evidence of waste, fraud and abuse.
I yield back my time. Thank you, Mr. Chairman.
[The prepared statement of Hon. Diane E. Waxman follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Towns. I recognize the gentleman from Virginia Mr.
Connolly.
Mr. Connolly. Thank you, Mr. Chairman, and thank you for
holding this important hearing.
After 8 years of unprecedented secrecy and bizarre claims
of Executive privilege, it is essential that this committee act
to restore transparency to the Federal Government. The
Whistleblower Protection Enhancement Act is a crucial part in
that endeavor.
The primary reason we should enhance protection for
whistleblowers is because it is in our national interest to do
so. A lack of whistleblower protection simply cloaks problems
that cannot be solved until we are aware of them. We will hear
compelling testimony today from Teresa Chambers, who was fired
from the U.S. Park Police for accurately reporting the capacity
of her agency. We must know about agency issues, such as this
one that she brought to the public's attention if we are to
solve the problem. Ms. Chambers seems to have been fired as a
result of political interference by the prior administration.
Perhaps greater oversight into the operation of agencies,
such as the Federal Emergency Management Agency, could have
mitigated the catastrophic impact of Hurricane Katrina. But
regrettably, at that time, Congress and the public did not
learn about agency shortcomings until after the disaster
struck.
In his written testimony today, Louis Fisher states the
Presidential authority to keep information secret has been
exaggerated. Legislative action such as that outlined in H.R.
1507 could preclude a recurrence of administrative issuance of
directives for our military to torture detainees as a standard
method of interrogation, for example.
Of course, whistleblower protections are essential for
Federal agencies to function efficiency; however, it is even
more critical to protect whistleblowers so we may identify and
correct shortcomings in our effort to guard against terrorist
attack, crime and natural disaster. I applaud this legislation.
I particularly applaud the leadership of our colleague Mr. Van
Hollen from Maryland. I look forward to supporting the
legislation and to these hearings.
Thank you, Mr. Chairman.
[The prepared statement of Hon. Gerald E. Connolly
follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Towns. I don't see Mr. Platts, but he also had a
great role in making certain that he was very involved with
this along with Congressman Van Hollen as well.
We will turn now to our first panel, which will consist of
one government witness. Mr. De recently joined the Obama
administration as a Deputy Assistant Attorney General in the
Justice Department's Office of Legal Policy. Before joining the
administration, Mr. De was a partner at Mayer Brown. Previously
he had served as general counsel to the Commission on the
Prevention of WMD Proliferation and Terrorism, counsel to the
Senate's Homeland Security and Governmental Affairs Committee,
and counsel to the 9/11 Commission.
Before we hear from the witness, I want to note that we
have several government agencies in attendance today, all of
which, I understand, worked together in preparing the testimony
that Mr. De will deliver. I thank all of you for that. Thank
you for your involvement and also that you recognize how
important this is as well.
Mr. De, it is longstanding committee policy that we swear
our witnesses in. So could you please stand and raise your
right hand?
[Witness sworn.]
Chairman Towns. Let the record reflect the witness answered
in the affirmative.
STATEMENT OF RAJESH DE, DEPUTY ASSISTANT ATTORNEY GENERAL,
OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE
Mr. De. Good morning, Mr. Chairman, Mr. Ranking Member,
members of the committee. Thank you for the opportunity to
appear today to discuss the Whistleblower Protection
Enhancement Act.
This administration strongly protects--strongly supports
protecting the rights of whistleblowers. We recognize that the
best source of information about waste, fraud and abuse in
government is often a government employee committed to public
integrity and willing to speak out. Empowering whistleblowers
is a keystone of the President's firm commitment to ensuring
accountability in government.
A government employee who speaks out about waste, fraud and
abuse performs a valuable public service. Such acts of courage
and patriotism, which can sometimes save lives and often save
taxpayer dollars, should be encouraged rather than stifled. But
too often, whistleblowers are afraid to call attention to
wrongdoing in their own workplace. We need to empower all
Federal employees as stewards of accountability. Put simply,
accountability cannot solely be imposed from the top down.
The bottom line is we cannot tolerate waste, fraud and
abuse, and we must make sure that Federal employees at all
levels are able to do what it takes to eliminate it. At the
same time, we must preserve the President's constitutional
responsibility with regard to the security of national security
information and ensure that agency managers have effective
tools to discipline employees who themselves may be engaged in
waste, fraud and abuse.
We recognize that the executive branch and Congress have
long held differing views regarding the extent of the
President's constitutional authority over national security
information. Putting aside those constitutional differences to
the extent possible, our focus today is achieving common ground
and a workable solution toward our shared goal of increasing
protections for Federal whistleblowers, including those who
work in the national security realm.
Creating a system that sets up the right incentives for
Federal employees and managers is not easy, as evidenced by
multiple efforts to reform the system in the past three
decades. This administration believes that the time has come to
amend the system once again.
I would like to discuss some key components of the
whistleblower reform legislation both with respect to Civil
Service reform and the national security interests that are of
interest to this committee.
Turning first to the Civil Service reform issues. This bill
would make a number of important changes to the ways in which
whistleblower claims are adjudicated. For example, the bill
would, for the first time, allow whistleblowers to obtain
compensatory damages. That is a matter of both simple fairness
and of practicality. A whistleblower who suffers retaliation
should be made whole, plain and simple, and we agree with this
measure.
This bill also makes several important changes to the
definition of what would constitute a protected disclosure.
Under current law, a whistleblower is not protected if she
informs her boss of wrongdoing, only to later find out that her
boss was the very person responsible for the wrongdoing. Thus,
under current law, the employee would be protected for going to
the Washington Post, but not for going to her own boss.
Changing the law to eliminate this disparity would encourage
employees to tell their supervisors about problems in the first
instance, which is usually the easiest way to resolve them.
This administration also supports modification of what is
known as the normal-duty disclosure rule. Under that rule, an
employee is not protected when he discloses wrongdoing as part
of his normal job duties unless he makes that disclosure
outside of normal channels. This administration believes,
however, that normal-duty disclosures should be protected,
particularly when public health and safety are at stake.
Beyond the Civil Service arena, this administration also
believes that whistleblowers in the national security realm
must have a safe and effective method of disclosing wrongdoing
without fear of retaliation. We are pleased to see that this
bill provides full whistleblower protections to Transportation
Security Administration screeners who literally stand at the
front lines of our Nation's homeland security system. They
deserve the same whistleblower protections as all other
employees of the Department of Homeland Security.
As this committee knows, the Intelligence Community is
generally excluded from the existing Whistleblower Protection
Act. The Intelligence Community Whistleblower Protection Act of
1998 represents Congress' most recent attempt to provide a safe
and effective channel for national security whistleblowers to
report wrongdoings. That act provides a vehicle for
Intelligence Community employees to report matters of urgent
concern to Congress. The ICWPA, however, affords the individual
employee no avenue for a potential disclosure beyond her
specific agency.
This administration believes that no Federal agency should
be able to hide its own wrongdoing. For this reason, we
proposed the creation of an extra-agency avenue within the
executive branch for Federal employees who wish to make
classified disclosures to Congress under the ICWPA. This
mechanism could be composed of senior Presidentially appointed
officials from key agencies within and outside the Intelligence
Community, including inspectors general, and would ensure that
no individual agency can rely inappropriately on alleged
classification concerns to stifle disclosure of waste, fraud
and abuse.
If, under the procedures set forth under the ICWPA, an
agency head declines to transmit information to Congress or
declines to provide instructions to the employees on how he may
do so, the employee could appeal to this new entity, which
could overrule the agency head. Individual employees, moreover,
we believe, should be entitled to alert Congress to the fact
that they have raised a potential disclosure in the ICWPA
process or with this new executive branch.
We also believe that the extra-agency mechanism could
provide a better vehicle to review alleged retaliatory security
clearance revocations from the system currently set forth in
H.R. 1507. We are aware that this committee has heard testimony
in the past from individuals who have claimed that their
security clearances were revoked due to whistleblowing
activities. This administration has zero tolerance for such
actions. An agency mechanism--extra-agency mechanism could
recommend full relief to the aggrieved employee, including
restoration of the clearance, and could ensure that Congress
would be notified if that recommendation is not followed. This
mechanism would ensure that no agency would remove a security
clearance as a way to retaliate against an employee who speaks
truth that the agency does not want to hear.
Of course, retaliation may take many forms, and we are
committed to providing more general protections for
Intelligence Community whistleblowers. Such whistleblowers
expose flaws in programs that are essential for protecting our
collective national security. One complication, of course, is
that Intelligence Committee whistleblowers may well reveal
waste, fraud and abuse in activities that take place within
highly classified programs. Due to the sensitive nature of the
issues involved, we believe that Federal District Court review
may not be the appropriate vehicle for Intelligence Community
whistleblowers. Rather, a better vehicle may well be the extra-
agency mechanism within the executive branch, which we propose
to create.
Of course, we look forward to working with the committee in
a constructive dialog to craft a scheme that satisfies all of
our shared goals.
Finally, this legislation is merely one step in this
administration's plan to assure accountability in government.
We appreciate the efforts that this committee has made to
devise whistleblower protections that work. We look forward to
working with you to revise and improve this legislation.
With that, I would be pleased to take your questions.
Chairman Towns. Thank you very much, Mr. De, for your
testimony.
[The prepared statement of Mr. De follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Towns. Let me just announce to the Members that we
have five votes on the floor, which means that we need at least
an hour. So we will go on a break and be back at 11:30.
So, Mr. De, we do have to vote around here, so why don't we
stop at this point, and then we will go vote and come back at
11:30. Thank you very much for your testimony, and we will
continue our questioning when we return.
[Recess.]
Chairman Towns. The committee will come to order.
Let me begin by first apologizing for the delay. There were
some procedural votes that we didn't anticipate. So that
delayed us even further.
Mr. De, one of the witnesses on our next panel notes that
an intolerance of criticism by the previous administration was
one of the reasons she was treated so harshly after disclosing
safety concerns.
I believe that the willingness to accept criticism is a
sign of strength and something that all leaders should embrace.
President Obama seems to recognize the need to tolerate
dissent; but I wonder what actions are being taken to send this
message to the agency managers, because sometimes you have
feelings about these and it is not conveyed to the managers, of
course, and the secretaries in terms of the views of the
individual that is providing overall leadership.
Mr. De. Thank you, Mr. Chairman. As you note, the President
has clearly expressed and signaled his strong commitment not
only to whistleblowers but to broader transparency and
accountability initiatives.
I think the general philosophy that we have seen take hold
from this administration is, we all want to see--we all want to
get to the right answers in the right way. And an as example of
the sort of message that has gone to agency heads from the
President directly, I would refer you to a March 9th
memorandum, Presidential memorandum, that went to all agency
heads specifically related to the subject of scientific
integrity.
Now, I understand that is one example of the type of
tolerance of dissent that you have alluded to, and this is one
of particular concern to this committee, given that this
subject is addressed in the bill, which we applaud.
For example, in this Presidential memo that went to every
agency head, the President directed that each agency shall
adopt additional procedures, including any whistleblower
protections as are necessary, to ensure the integrity of
scientific and technological information and processes on which
the agency relies in its decisionmaking.
So I would put that forward as one example of direct
communication from the President to agency heads in order to
tolerate dissent and to make sure we all get to the right
answer in the right way.
Chairman Towns. What do you feel that is not here that
should be here?
Mr. De. With respect to the bill, I think certainly we
applaud a lot of what is in the bill. I think some suggestions
we have concern how to more carefully tailor some of the
amendments to--for example, the definition of ``protective
disclosure'' or how national security whistleblowers are dealt
with.
And so I think our proposal--one thing that we think isn't
here would be the suggestion for a new executive agency board
that sits outside of individual agencies. We think that is
something that could contribute to the goals of the legislation
in a way that accommodates both the executive branch concerns
and the congressional concerns. Such a new board would be able
to deal with several issues that this committee has identified
as issues of concern, whether it is retaliation for security
clearance revocations, whether it is predisclosure from
executive branch employees to congressional--relevant
congressional Members of national security matters, or whether
it had to do with retaliation claims generally about national
security whistleblowers.
So I think some sort of executive branch entity outside of
individual agencies would be something that would contribute to
the goals of this legislation.
Chairman Towns. Thank you.
In the national security and intelligence area, I think we
agree, a good outcome would be to set up a system that
encourages employees to work within the system rather than
disclosing sensitive information to the newspapers. We want
employees to feel comfortable raising problems right away so
that any serious misconduct is addressed before it becomes a
major problem or a scandal.
Do you believe that the process you outlined in your
testimony will encourage employees to disclose information
internally rather than to the New York Times, Washington Post
and, of course, Amsterdam News? And what other steps do you
think are necessary to restore employees' confidence in the
system?
Mr. De. We very much agree that the most effective,
efficient way to address the wrongdoing that we all want to
address is to ensure that whistleblowers do so in a way that
allows us to fix these problems at the earliest possible stage.
Some of the suggested fixes in the bill, as well as some of the
ideas we have put forward, are certainly meant to address that
concern, and we appreciate that philosophy that is clearly
reflected in the bill itself already.
I think one example of how we believe our proposal could
certainly further that end is, if national security
whistleblowers do feel confident that there is a means for
redress for concerns over retaliation, if it is addressed, for
example, by the new extra-agency panel that we propose, that
very comfort and confidence, that there is a means for them for
redress, in and of itself, will promote the proper disclosure
of waste, fraud, and abuse in a way that we can actually
address it and fix it more quickly in the process, rather than
making such whistleblowers feel that their only option is to go
outside the system to the press, which doesn't help us fix the
problem as easily as we could otherwise, and puts everybody in
jeopardy potentially.
Chairman Towns. Let me ask you this one, and then I am
going to yield to my colleague from Massachusetts.
Could you comment on the provisions in the legislation that
strengthen protection for employees of Federal contractors?
This is similar to the protections we passed for recipients of
the stimulus funds, which the President signed and that you
highlighted in your testimony.
Could you comment on that provision?
Mr. De. Yes, sir.
As you know and as you mentioned, the President was pleased
to sign the Recovery Act, which included a provision that
extended whistleblower protection to recipients of stimulus
funds. We are pleased that this bill extends protection
beyond--to Federal contractors, beyond just recipients of
Federal stimulus funds, but to all Federal contractors. So we
would support extending protection to Federal contractors
generally.
Chairman Towns. I yield to the gentleman from Massachusetts
for 5 minutes.
Mr. Tierney. Thank you, Mr. Chairman.
Mr. De, thank you for being here today.
With respect to that part of the bill that deals with
whistleblower disclosures in the FBI, do you have a comment to
make about the proposal by some that section be amended to
explicitly state that disclosures made through the normal chain
of command at the FBI do not lose their protective status?
Mr. De. As a general matter, we certainly believe that
normal chain of command disclosures should, in fact, be
protected. We want to encourage employees to do what their
first instinct normally is to do, which is to go to your boss
and say, I think that this is a problem.
And so we certainly agree that applies throughout the
government, and we would like to make sure that particular
language in the bill is crafted in such a way to ensure that it
achieves that goal, but also doesn't unnecessarily chill
Federal managers from taking whatever appropriate disciplinary
actions there may be in the normal course of employment.
Mr. Tierney. Thank you.
I yield back, Mr. Chairman.
Chairman Towns. Thank you very much.
You know, if you were able to score on 1 to 10 in terms of
this legislation, what number would you give it?
Mr. De. Well, I am not a numbers person, so I suppose that
is the first answer I would have. I think we are----
Chairman Towns. We will leave the record open for you to
get a number.
Mr. De. I would say this. We are very, very pleased that
the committee and Congress are paying attention to this issue.
And the President and this administration want to see a bill,
so we are very engaged to make sure that this bill happens to
the extent Congress can make it happen this year.
Chairman Towns. Thank you very much. And thank you for your
testimony. Thank you.
Panel No. 2. We now turn to our second panel.
Our second panel will have three witnesses made up of
current and former employees of the Federal Government. These
whistleblowers each followed their conscience in disclosing
evidence of wrongdoing or threats of public safety. They have
taken different paths to arrive here today, and we have asked
them to share their experiences with the committee.
We will first hear from Ms. Bunnatine Greenhouse, better
known as Bunny, who is a top procurement executive with the
Army Corps of Engineers.
Our next witness, Franz Gayl, is employed as a civilian
science and technology advisor with the U.S. Marine Corps.
Our third witness, Teresa Chambers, was the chief of the
U.S. Park Police and was removed after disclosing her concerns
about the safety of the National Parks.
I look forward to hearing each of your testimonies. And, as
I said earlier, it is committee policy that all witnesses are
sworn in. So if you would stand and raise your right hands.
[Witnesses sworn.]
Chairman Towns. Let the record reflect that the witnesses
answered in the affirmative.
As with the other panel, what we would like for you to do
is to talk for 5 minutes in terms of--and then, of course,
allow us an opportunity to raise questions with you.
So why don't we start with you, Ms. Greenhouse, and come
right down the line.
Thank you all for being here.
STATEMENTS OF BUNNATINE H. GREENHOUSE, FORMER PROCUREMENT
EXECUTIVE AND PRINCIPAL ASSISTANT RESPONSIBLE FOR CONTRACTING
[PARC], U.S. ARMY CORPS OF ENGINEERS; FRANZ GAYL, SCIENCE AND
TECHNOLOGY ADVISOR TO THE DEPUTY COMMANDANT FOR PLANS, POLICIES
AND OPERATIONS/DEPUTY BRANCH HEAD, U.S. MARINE CORPS; AND
TERESA CHAMBERS, FORMER CHIEF, U.S. PARK POLICE
STATEMENT OF BUNNATINE H. GREENHOUSE
Ms. Greenhouse. Chairman Towns--I believe Ranking Member
Issa is not here now----
Chairman Towns. He will be here.
Ms. Greenhouse [continuing]. And honorable members of the
committee, I want to first thank you for holding this hearing.
I am required to state that I appear in my personal capacity.
In 1997, I was sworn in as the U.S. Army Corps of Engineers
Procurement Executive and Principal Assistant Responsible for
Contracting. I was selected for this position following a
competitive selection process where I was judged most
qualified. I am proud to have been the first black female to
become a member of the Corps' senior acquisition service--
executive service.
I soon realized that the Corps' contracting practices were
dominated by cozy and clubby contracting relationships. Simply
stated, improper contracting practices were the norm rather
than the exception. I fought to bring accountability and
fairness to the Corps' contracting mission, which brought about
hostility and was blatantly tied to my race and gender.
During the ramp-up to the Iraq war, the Army Corps was
named as the executive agent for a contract effort known as
Restore Iraqi Oil [RIO]. RIO was a $7 billion sole-source cost-
plus contract awarded to Halliburton subsidiary Kellogg Brown &
Root without competition.
A decision at the highest levels was made to exclude me as
much as possible from the RIO contracting effort. I was not
told that the Corps had been selected as the executive agent
for the RIO contract, and I was kept in the dark for as long as
possible. But I could not be completely circumvented, because
eventually the final justification and approval for the RIO
contract had to be provided--had to be provided to me for
signature.
It was not until the invasion of Iraq and that was imminent
that the curtain was finally lifted, giving me a front row seat
to the worst contract abuse I witnessed during the course of my
23-year professional contracting career. Although the Corps had
been named the executive agent, in reality that function was
controlled out of the Office of the Secretary of Defense.
I raised concerns directly to the Secretary of Defense's
representative and to the senior contracting officials from the
Department of Army and to my command, outlining the selection
of KBR was improper and unlawful, that the process was plagued
by conflict of interests, and the scope and the duration of the
compelling emergency contract was unconscionable. My concerns
were ignored.
Because the invasion of Iraq was imminent and there was
little that I could do, after some soul-searching, I was
compelled to handwrite directly onto the original copy of the
contracting documentation a notation documenting my most
pressing concern over the unprecedented duration of the
contract. My notation on the contract documents did not sit
well with my superiors, and retaliation was sure to follow.
In October 2004, I was called into the commander's office
and given written notice that I was to be removed from the
senior executive service and from my position. I was told that
I could avoid the embarrassment of demotion and could retire
with grace.
I did nothing wrong. I was not going to retire, and I could
no longer remain silent. I turned to Michael Kohn, a cofounder
of the National Whistleblower Center, for help. With his
assistance, I was able to bring my concerns to the then Acting
Secretary of the Army and key Members of Congress.
A media storm followed. The Acting Secretary of the Army
did the right thing by acknowledging the seriousness of my
concerns. He ordered a halt to my demotion and removal until my
concerns were reviewed by the Department of Defense Office of
Inspector General [DOD IG]. But there was no visible action to
investigate my concerns. As far as I can tell, the DOD IG never
conducted an investigation.
The status quo ended after I agreed to testify before a
congressional committee regarding improper contracting. I was
approached by the U.S. Senate Democratic Policy Committee and
asked to provide testimony about my concerns. I felt obligated
to appear, particularly because my concerns were not being
looked into as had been promised by the Acting Secretary of the
Army.
Word that I was going to appear reached the Corps, which
prompted a visit from the Army Corps' Acting General Counsel.
He let it be known that it would not be in my best interest to
voluntarily appear before the committee. I ignored the message,
and that was delivered, and testified on June 27, 2005.
I anticipated swift retaliation for doing so, and I didn't
have to wait long. On August 25, 2005, I was removed from the
SES and stripped of all contracting responsibilities.
Since then, my Top Secret clearance was withdrawn. I
continually receive inappropriately downgraded performance
reviews, others are allowed to take credit for my work, and I
am kept away from my career field of contracting. I was even
denied recognition for having 25 years of Federal service at
the annual USACE award ceremony that was afforded to other
USACE-eligible employees.
I am not an expert in the law, but I am well versed in how
poorly it works when it comes to Federal sector whistleblower
protection. The current reality is that the Federal
Whistleblower Protection Act offers no protection. How poorly
it works is perhaps best exemplified by the advice I received
from the National Whistleblowers Center, a not-for-profit
organization devoted to helping whistleblowers. When I
explained what was happening to me, I was told that filing a
claim under the Whistleblower Protection Act would do more harm
than good.
I essentially received the same advice from my former
commander, Lieutenant General Carl Strock, who was responsible
for my removal and demotion. When my whistleblower concerns
were made public, he announced in my presence during his weekly
staff meeting of his senior staff that the Corps had a
whistleblower, but that there was no need for concern because
the system would take care of itself.
I am the poster child of what Federal employees can expect
if they have the courage to blow the whistle on waste, fraud,
or abuse: a lost career, with the inability to wage a
meaningful legal challenge.
Federal employees deserve more than that. Thank you for
listening.
Chairman Towns. Thank you very much, Ms. Greenhouse, for
your testimony.
[The prepared statement of Ms. Greenhouse follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Towns. Mr. Gayl.
STATEMENT OF FRANZ GAYL
Mr. Gayl. Mr. Chairman, thank you for inviting my testimony
today. I just wanted to say that I am testifying in my personal
capacity and not in my official functions.
My name is Franz Gayl. I enlisted in the Marine Corps in
1974 and retired as a major in 2002. Following my retirement, I
was hired back by the Marine Corps as a GS-15 civil servant.
I had enjoyed an unblemished record as a science advisor
and deputy branch head until I blew the whistle on the Marine
Corps' support establishment in Quantico in early 22007. I am
testifying because I want my lessons to make a difference as
you consider this new legislation.
In 2006, I volunteered to deploy to Iraq to assist I MEF
Forces with equipment deficiencies facing Marines. In Iraq, I
witnessed the tangible costs in lives lost and serious injuries
incurred due to gross mismanagement of requirements at
Quantico. I perceived that the Marine Corps Combat Development
Command at Quantico remained willfully blind to the
consequences of equipment delays.
The most tragic consequences resulted from delays in
fielding the Mine Resistant Ambush Protected vehicles. I
contend that officials knowingly delayed or refused the
provision of urgently requested capabilities like MRAP whenever
requests competed against preexisting Quantico priorities for
finite resources.
Upon returning, I was committed to ensuring accountability
for the preventible loss of life and to achieve lasting
organizational improvements. However, after my supervisors
silenced my attempts to bring the issues to the attention of
the Office of the Secretary of Defense, I reached out to the
offices of then-Senator Biden and Senator Bond.
For the OSD disclosures, I received a formal counseling and
rewritten job description. Then I received a formal letter of
reprimand for a well-received e-mail to a senior joint
commander outside of my chain of command. Finally, I received a
notice of proposed suspension for meeting with congressional
staffers. I submitted three complaints to the Office of Special
Counsel, each being rejected on different grounds.
The Government Accountability Project assisted me in
getting OSC to consider a fourth submission and I was also
invited for an interview, but I have not heard from OSC in over
a year. GAP and concerned Members of Congress have been my only
advocates.
Then, in 2007, I was directed to conduct a study aimed at
modernizing combat development processes. I completed studies
on MRAP, laser dazzler, and other denied capabilities. When
staffers asked for the unclassified case studies, I provided
them. This initiated DOD IG audits of MRAP and laser dazzler
urgent needs. The MRAP audit found that the Marine Corps was
aware of the threat posed by improvised explosive devices and
of the availability of MRAP-type vehicles years before
insurgent actions began in Iraq yet did not acquire them. Even
after I MEF Forward urgently requested MRAPs to mitigate
casualties, MCCDC did not respond.
The audit did not refute my case study findings that the
MRAP requirement was grossly mismanaged and that inaction by
MCCDC cost many Marines their lives unnecessarily. Other
independent audits further confirmed my disclosed concerns. The
dazzler audit is ongoing.
More reprisals have followed from my case study disclosure
to Congress, including disapproval of two separate requests to
attend school, disapproval to participate in a 2-year
congressional fellowship program, and a ``2'' performance
rating for 2008 under the National Security Personnel System. A
``2'' places me in the bottom 3 percent of the 160 civilians
against whom I was compared. I am also undergoing a periodic
security clearance reinvestigation. I have no reason to believe
that my supervisors portrayed me as trustworthy.
Finally, I have been issued a performance improvement
program, giving me 26 workdays to complete a lengthy list of
self-improvement steps. It appears clear to me that the latest
reprisal will probably lead to my termination. My current
situation is a far cry from the I MEF Forward commanding
general's recommendation to have me considered for the senior
executive service ranks when I returned from Iraq.
In conclusion, the Marine Corps is my life, and I owe back
a great debt. That is why I continue to hang in there. I joined
the Marine Corps following my 17th birthday in 1974, and the
Corps has given me my proudest identity and a purpose for my
life. I feel very fortunate indeed. But it is the Marine Corps
I honor, not the Quantico and Beltway corporate Marine Corps, a
culture that has acted on incentives and exhibited priorities
that were and are often divorced from those of Marines in
harm's way.
Officials must be held accountable for their past willful
blindness to known threats and the general officers who, one,
failed to supervise those officials then, or two, continue to
defend their past actions today, must be held accountable as
well. If those generals and officials are not held accountable
for past tragedies before public attention wanes, the same
officials will follow parochial priorities with renewed
confidence in the future, and Marines will again pay the price
in the field.
As I stated to my supervisor during a counseling session in
2007, I intend to successfully achieve a degree of
accountability and concrete change at Quantico, or I will be
fired in the process of trying. While I don't want to be fired,
that may be the cost of me doing my duty as a Marine and a
civil servant.
The legislation you are discussing today will probably come
too late for me. However, I will feel good if I manage to help
protect DOD Federal employees in the future from the sort of
treatment I have been experiencing over the past 2 years. Thank
you, sir.
Chairman Towns. Thank you very much.
[The prepared statement of Mr. Gayl follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Towns. Ms. Chambers.
STATEMENT OF TERESA CHAMBERS
Ms. Chambers. Thank you, Mr. Chairman and members. Thank
you for this long-awaited opportunity.
My name is Teresa Chambers, and I am a 33-year career law
enforcement professional, and I had been the chief of the U.S.
Park Police, responsible for protecting our Nation's most
notable parks, monuments, and parkways.
Being selected for this position following a nationwide
search was a tremendous honor, affording me the opportunity to
serve my country. For the past 5\1/2\ years, however, I have
been trapped in a bizarre, utterly broken system. Years of
litigation have yet to resolve a very simple question: Is
telling the truth a firing offense in Federal service?
In November 2003, a Washington Post reporter contacted me
for an official agency response regarding information the union
had supplied him, including internal documents showing there
were not enough officers to cover assignments following the
attacks of 9/11. On December 2nd, the Post published the
article.
After reading it, I thought it would be well received
because thorny issues had been handled deftly. This was not the
case. Three days later, without explanation and with three
armed special agents at his side, then National Park Service
Deputy Director Donald Murphy ordered me to surrender my gun,
badge, and identification.
I was placed on administrative leave and ordered not to
speak further with the media. Two of the agents escorted me
back to my office to quickly collect personal effects. Then I
was walked out into the street. Standing there at the curb in
full uniform holding a cardboard box of things, I was stunned.
Little did I know that a long, strange odyssey had just begun.
One week later, I was summoned to a meeting with Murphy and
his senior Department of Interior attorney. They offered to
forgo any punishment and fully restore me as chief if I would
appear at a press conference to deny that there had been any
sort of disagreement. A string was attached: A political
appointee would vet all my communications with Congress and the
media. I refused to participate in what would result in
misleading Congress and the public.
Days later, I was charged administratively with improperly
disclosing law enforcement sensitive information to the
Washington Post. For good measure, Interior tacked on five
administrative charges, none of which had been raised
previously. The charges were not true, and I filed a detailed
rebuttal.
Convinced that these charges would not withstand factual or
legal scrutiny, I lodged a complaint with the U.S. Office of
Special Counsel. The investigation dragged on for 5 months, but
came to no conclusion. At one point, OSC hosted a dispute
resolution meeting, during which a Bush appointee suggested
that Interior would pay me $300,000 to resign. When I told them
I was not interested in money, those negotiations quickly
ended.
After more than 7 months, I filed directly with the Merit
Systems Protection Board, and within a few hours of doing so,
Interior announced its decision to fire me.
The MSPB process has been a long, drawn-out nightmare.
After the MSPB on a split vote rejecting my appeal, I went to
the Federal Circuit. In a rarity, the Federal Circuit ruled for
me and sent my case back to the MSPB, which this January ruled
against me again. Now my case is back before the Federal
Circuit yet a second time.
My experience demonstrates that the system is broken and
that Congress needs to adopt fundamental reform. First, the
system must be fast and fair, fast in that there must be
expeditious means to resolve cases and fair in that, if the
case does not quickly resolve, it should be brought before a
jury. Giving employees access to jury trials is the single
biggest reform. Before juries, agencies will quickly learn that
reprisal campaigns will backfire.
Second, rules must be clear. Eliminate the legal thicket
that shields retaliation. Above all, honesty in Federal service
should be expected and protected.
Third, look at underlying problems. The current system
concentrates only on the personnel action, but completely
ignores the underlying problem over which the civil servant
risked his or her career.
In 2003, I told Congress and top agency officials that the
U.S. Park Police was dangerously understaffed. It is still
understaffed and even more so today. The men and women
patrolling the monuments, parks, and parkways are not getting
the support they need to do a demanding but vital job; and
because of this, both they and the public remain in danger.
I am proud of my service with the U.S. Park Police, and I
stand by the decisions I have made. My hope is that my
experience will result in positive change for public servants
who have the courage to speak the truth regardless of the
consequences.
Thank you for your time, sir.
Chairman Towns. Thank you very much.
[The prepared statement of Ms. Chambers follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Towns. Let me thank all of you for your testimony,
and let me thank you for your years of public service. It is an
unfortunate truth that the difficulties you and others have
encountered are the inspiration for this important legislation.
Let me begin, I guess, with you, Ms. Greenhouse. You note
in your testimony that your Top Secret clearance was removed
after you blew the whistle.
What justification did the Corps provide you for taking
that kind of drastic action?
Ms. Greenhouse. They were feeling that they were justified
because they said that I no longer had performance objectives
or duties that required their billet for a Top Secret
clearance.
I am quite capable even in the area where I have been
placed in the Directorate of Civil Works to do a lot more jobs
that would require a Top Secret clearance, but I am not placed
in those jobs. And then they used that as their justification
for saying that you are no longer doing jobs that are of the
importance or where you will be involved with Top Secret types
of material; therefore, your Top Secret clearance is now being
terminated.
Chairman Towns. In other words, they just made up
something, basically, sort of.
Ms. Greenhouse. When I am quite willing and ready to say I
will take on any duties and I am capable. I have three master's
degrees and one in engineering management, so I knew I could do
the jobs. But why not give me the jobs so that I could maintain
the Top Secret clearance and then be in a position to give more
value to my Nation?
Chairman Towns. Thank you.
Ms. Chambers, could you please illustrate the type of
safety concerns you believe that the National Parks are
vulnerable to because of insufficient resources?
Ms. Chambers. Sir, the most glaring example came last night
as I attended the Law Enforcement Officers Memorial Candlelight
Vigil. I buried a police officer from the U.S. Park Police.
Part of the reason that he died is because there were not
sufficient officers to protect an accident scene on the
Baltimore-Washington Parkway.
Everyone in the Nation in law enforcement was short after
9/11, and we were no different. The difference was that while
local agencies could apply for Federal benefits and increase
their numbers of officers, we in the Park Police stayed
stagnant. In fact, instead of increasing in numbers following
9/11, our numbers fell.
We gave great attention to our monuments and memorials, and
even with that, it wasn't a sufficient amount of attention. It
was, frankly, Mr. Chairman, window dressing. We had extra
officers, but we weren't doing the real work behind the scenes
that needed to be done. We also were pulling from our
neighborhood parks and parkways, leaving them extremely short
and understaffed.
I had shared this information with folks in my chain of
command and it fell on deaf ears. And it wasn't until the
Washington Post had asked whether this information that the
union had taken to them was factual that the hammer fell.
Chairman Towns. Let me ask all three of you this question.
People are saying that, look, workers are not going to
believe you if you talk about protecting whistleblowers based
on what they have seen down through the years, and they are
just not--not going to happen.
And, of course--let me ask all three of you; and this is
something that Senator Grassley has for many years talked
about: a ceremony in the Rose Garden for whistleblowers to
demonstrate the value of the whistleblowers to public service.
And, of course, if President Obama invited each of you to a
ceremony in the Rose Garden, would you show up?
Right down the line, starting with you, Ms. Greenhouse.
Ms. Greenhouse. I am sorry? I missed it. The question
again?
Chairman Towns. The problem is that many workers do not
feel that when it comes to protecting whistleblowers, the
government--that the agencies are not serious about it. Well,
Senator Grassley said that one way to do that would be to have
a ceremony for all the whistleblowers in the Rose Garden.
So I am saying to you, if President Obama invited you to
the Rose Garden for a ceremony, would you show up?
Ms. Greenhouse. I would be honored to.
Mr. Gayl. I would be honored to as well.
Ms. Chambers. I would be the first there, sir.
Chairman Towns. I think we have to look at things like that
to sort of point out how serious this legislation is.
And so let me at this point yield to my colleague. First, I
want to yield to the person that sponsored the legislation, and
then I am going to go next to let you know that we are really
serious about it.
I want to yield to Congressman Van Hollen, and then of
course I will recognize other Members as well. This is the
sponsor of this legislation, Congressman Van Hollen.
Mr. Van Hollen. Well, thank you, Mr. Chairman. And let me
thank my colleague, Mr. Quigley, and again welcome him to the
Congress as one of the newest Members. It is great to have him
on this committee.
I just want to come and thank all of you for your testimony
today, but for also having stood up as whistleblowers and put
yourselves on the line. And your stories are the reasons that
we are moving forward so aggressively with this legislation. As
you have heard, it has passed the House before, twice now.
Our understanding from Members of the Senate is that this
time they will engage in this. And we are going to take their
statements at face value and in good faith, and we really hope
that this time around we can move forward.
I think you probably heard the testimony from the Obama
administration earlier today, which was a real sea change from
the statements that we have had from earlier administrations on
this legislation. And so I think that things are lining up.
We are very hopeful--we are confident that we will get it
out of the House again. We are very hopeful we will then get it
out of the Senate and to the President's desk. And as the
administration witness said today, the President looks forward
to signing legislation strengthening whistleblower protections.
But we wouldn't be here today and we would not know of the
flaws and problems with the existing system if it hadn't been
for your courage in coming forward. And so, really, as the
chairman suggested in his last question to you, this
legislation is really dedicated to you and all the other
whistleblowers out there who come forward to try and protect
the taxpayer, protect our country. And it is time that we send
a signal that kind of bravery and courage is rewarded and not
punished.
So thank you all for coming forward today.
Thank you, Mr. Chairman.
Chairman Towns. Thank you very much.
I yield 5 minutes to Congressman Quigley from the great
State of Illinois.
Mr. Quigley. Thank you so much, Mr. Chairman. And thank you
very much to the sponsor of this measure. It is a welcome sign
here.
And I want to thank everyone in this room for their
efforts. I come from a town right now that is struggling with
these issues, and it is important across the whole country.
A wise man once said that illumination is the best
disinfectant for government. And without transparency, without
accountability, we simply can't know what is happening, and the
public doesn't get the kind of government they deserve.
Jefferson said, In a democracy we get the kind of government we
deserve. Well, I would suggest that wouldn't be the case
without efforts like yours.
We can't drive past these buildings and know what is
happening inside. As large as this government is, there is just
absolutely no way we can know what is happening, and we cannot
promote accountability without the courage of folks like you.
So it is our role, in my mind, as a very young Member here,
to foster that, your role, as much as possible and to help you
in any way we can.
And I thank the chairman, for his efforts, and I thank the
sponsor, for being tenacious about this, and moving us in the
right direction. And as a freshman, in my own small way, I will
do everything I can.
So, thank you so much for all you do and I look forward to
moving this forward. Thank you.
Chairman Towns. Thank you very much, Congressman Quigley.
Let me ask you, Mr. Gayl--you know, an important part of
this committee is to look at the effectiveness of the
inspectors general. You have told us that the Department of
Defense inspector general largely vindicated your concerns.
Could you tell us what the Marine Corps has done to followup on
any recommendations the IG made in its report?
Mr. Gayl. Sir, I am not aware of any actions that were
taken in response to the IG's audit.
I do know there have been improvements made. There have
been other audits, too, that have taken a look at the Marine
Corps that have been very unfavorable with regard to the
requirements process at Quantico. One of them was a naval audit
service back as far as 2007.
I do know they were very engaged at Quantico in improving
the transparency of the requirements process and improving the
responsiveness to warfighters as a result of that very negative
report. But as far as any activities in response to the DOD
IG's audit of the MRAP Urgent--UUNS process, I do not know of
any specific actions the Marine Corps has taken.
Chairman Towns. Let me thank all three of you again for
your testimony. I would be delighted to yield.
Mr. Van Hollen. First, I want to thank the chairman for
taking this up as one of the first orders of business. I
appreciate that very much.
Again, thank you for your testimony.
I also want to apologize. Because of those votes, I think
all of our schedules got messed up, and I want to apologize to
the witnesses on the next panel that, unfortunately, I am not
going to be here. But I will be reading your testimony and
appreciate your input.
We have a great----
Chairman Towns. Turn your mic on.
Mr. Van Hollen. Thank you, Mr. Chairman.
I was just saying to the next panel, I apologize. Because
of the votes that messed up everyone's schedule, I am not going
to be able to be here. But I will look at your testimony.
Some of you have been before this panel before. We thank
you for all your contributions to this effort. Thank you.
And thank you, Mr. Chairman.
Chairman Towns. Thank you very much.
And let me also join by saying that we really thank you for
your testimony. I do believe that what you have done today is
going to make life better and make our government much stronger
as a result of your activity. And I think it is going to also
encourage people not to be afraid, if they see something wrong,
to try and move forward and make it right.
So I want to let you know you had a lot to do with this
legislation moving forward. And, of course, we are going to try
to make certain this time around that it goes all the way; and
based on what they are saying in the administration, that if it
hits his desk, he is going to sign it. So I want to let you
know that we thank you for it.
And we know that through that process of standing up, you
encountered some pain and some suffering. But I think that the
key to it is what you are doing in terms of paving the way for
others and, at the same time, strengthening our government.
That is what we want.
Transparency is something that we need too in our
government. The President of the United States--in every
conversation I have had with him, he has indicated that he
would like more transparency, and what you are doing is to help
him to get it. Thank you so much for your testimony.
Our final panel will have six witnesses made up of experts
in the field of constitutional law, whistleblower law, and
government accountability. Welcome.
Louis Fisher is a special assistant to the Law Librarian of
Congress at the Law Library of Congress and is an expert on
constitutional law and separation of power issues.
Professor Robert Turner from the University of Virginia is
the associate director of the Law School's Center for National
Security Law.
Tom Devine is the legal director of the Government
Accountability Project, which has been advocating for strong
whistleblower protection for over 30 years.
Angela Canterbury is the director of advocacy for Public
Citizen, Congress Watch Division, which has been promoting
government accountability for decades.
Mike German is policy counsel on national security with the
ACLU. Mr. German was an agent with the FBI and resigned over
concerns about failed prosecution of domestic terrorist
organizations.
Finally, David Colapinto is the general counsel of the
National Whistleblowers Center. Mr. Colapinto has developed
expertise in litigating FBI employment cases.
We have asked this panel to provide their views on specific
provisions of the legislation and to provide us with
suggestions for improving the bill.
It is the longstanding policy that we swear in all of our
witnesses. So if you would be kind enough to stand and raise
your right hands.
[Witnesses sworn.]
Chairman Towns. Let the record reflect that all the
witnesses answered in the affirmative.
Why don't we just start with you, Mr. Fisher, and come
right down the line.
STATEMENTS OF LOUIS FISHER, SPECIAL ASSISTANT TO THE LAW
LIBRARIAN OF CONGRESS, THE LAW LIBRARY OF CONGRESS; ROBERT F.
TURNER, PROFESSOR, ASSOCIATE DIRECTOR, CENTER FOR NATIONAL
SECURITY LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW; THOMAS
DEVINE, LEGAL DIRECTOR, GOVERNMENT ACCOUNTABILITY PROJECT;
ANGELA CANTERBURY, DIRECTOR OF ADVOCACY, PUBLIC CITIZEN,
CONGRESS WATCH DIVISION; MICHAEL GERMAN, POLICY COUNSEL,
AMERICAN CIVIL LIBERTIES UNION; AND DAVID COLAPINTO, GENERAL
COUNSEL, NATIONAL WHISTLEBLOWERS
STATEMENT OF LOUIS FISHER
Mr. Fisher. Mr. Chairman, thank you for inviting me. I
wanted to underscore, Mr. Chairman, what you said in your
opening remarks, the need of Members of Congress--in order for
you to carry out your constitutional duties, you need access
from the executive branch and access to information, domestic
information, national security information; and not just
information that the President or a Department head voluntarily
gives to you. You need information from agencies, in the middle
of an agency, at the bottom of an agency; otherwise, you cannot
know and correct wrongdoing and illegality. So that is the
basic point.
I look at the statement today from the Justice Department.
Although it doesn't get much into constitutional issues, I see
in the statement some reflection of what the Justice Department
has said in the past. And what the Justice Department has said
in the past is that the President can determine what
information you get, particularly in the national security
area: He can withhold information so that you cannot fulfill
your constitutional duties.
What the Justice Department has said in the past, they
relied I think in improper ways on two Supreme Court cases. And
one is the Egan case of 1988. I would just call to your
attention that the Egan case had nothing to do with
congressional access to national security information--nothing
to do. It was a dispute solely between--inside of the executive
branch between the Navy and the Merit Systems Protection Board.
So it had nothing to do with congressional access.
It also was a purely statutory matter; that is, what did
Congress intend in this area? It had nothing to do with any
constitutional powers of the President, anything that the
President has as commander in chief.
So I think that case has been misread by the Justice
Department, and I think that misunderstanding is implied in the
statement today from the Justice Department.
The Egan case was simply looking at Congress, what you
intended. And you can control this area through statutory
action; you don't have to leave that to some plenary power by
the President.
The second decision that is misread by the Justice
Department and I think is implied in today's statement from the
Justice Department is the Curtiss-Wright case of 1936, which
people read as giving the President plenary, exclusive,
independent, inherent power in national security to withhold
information to you.
I can only say that the Curtiss-Wright case had nothing to
do with Presidential power in terms of any inherent power; it
had only to do with congressional powers, to what you can
delegate to the President. And yet, it has been misread ever
since, and it is--I go into this in my statement for you, how
that has been abused over the years.
What people do is not look at the decision of the Supreme
Court, but to look at pages and pages of dicta by Justice
Sutherland. And I think anyone looking at the dicta will see
that it misreads particularly the statement that John
Marshall--when he was a Member of the House in 1800, he made
the statement that the President is the sole organ in external
affairs. That implies, the sole organ, that he can do
everything and has some exclusive power.
Anyone reading the speech today would see that what John
Marshall meant was that once Congress has made policy by
statute or by treaty, then the President is the sole organ in
carrying it out. You know that. Of course, that is what the
Constitution says. It is nothing new. But that has been
corrupted and misused by the Justice Department.
I also want to call attention that the Justice Department
seems to imply that because they make a vague reference to
President Washington--I assume they mean the Jay Treaty in
1796. But the fact is that President Washington 4 years earlier
in the Algerine Treaty not only gave all treaty documents to
the Senate, but gave the same documents to the House. So it is
not true that the House is out of the picture.
The last point I want to make is that in the past, when the
Justice Department testifies, it seems to imply that there are
two steps for you to get national security information: One,
you have to have clearance. But as an elected Member, you have
clearance.
The second step, you have to have a ``need to know.'' And
if I read statements in the past about the Justice Department,
it seems to say that the President or some executive official
can say, You have clearance, but you have no need to know;
therefore, you are not going to get the information.
And I will just close by reading from the 1998 CIA
whistleblower statute. One of the things that Congress said in
law is this: ``Congress, as a co-equal branch of Government, is
empowered by the Constitution to serve as a check on the
executive branch; in that capacity, it has a need to know, of
allegations of wrongdoing within the executive branch,
including allegations of wrongdoing in the Intelligence
Community.
Thank you.
Chairman Towns. Thank you very much for your testimony.
[The prepared statement of Mr. Fisher follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Towns. Mr. Turner.
STATEMENT OF ROBERT F. TURNER
Mr. Turner. Thank you, Mr. Chairman and members of the
committee. I am pleased and honored to be invited to share with
you my views on H.R. 1507.
I was just invited 2 days ago and was given a newspaper
article about the bill, and so my remarks are focused entirely
upon section 10, the National Security Whistleblowers Rights
Provision. And I would ask permission both to submit my
statement for the record and also to revise it to reflect the
fact that the bill covers a great deal more than this, and I do
not object--I do not take a position on the other provisions of
the bill. That is not my area of expertise.
Chairman Towns. Without objection, so ordered.
Mr. Turner. As a matter of public policy, I think this is a
truly horrible idea of passing a law authorizing low-level
employees in national security agencies to at-will give
classified information to Congress.
But on policy grounds we all can differ, and that is
something you can decide for yourselves. But I would
respectfully submit there is a bigger problem with the
legislation that mandates its rejection irrespective of
personal policy preference.
Each of you, before assuming office, took an oath to
support the Constitution, the highest law in the Nation. And I
believe this bill is flagrantly unconstitutional. I don't say
that lightly.
I first became interested in these issues in 1966, when I
had the privilege of attending a lecture in this area by the
great Quincy Wright. I spent much of my professional life in
recent decades studying, writing, and teaching about these
issues. I wrote a 1,700-page doctoral dissertation on the
issues and have written several books in the area. I worked on
the issue for 5 years as a Senate staff member, later in the
Pentagon, the White House, and the State Department, where I
was the Acting Assistant Secretary For Legislative Affairs in
1984-85. I spent three terms as chairman of the American Bar
Association's Standing Committee on Law and National Security.
And, as you noted, in 1981, I cofounded the Nation's first
think tank in this area, the Center for National Security Law.
My prepared statement, which was done very quickly but is
about 20 single-spaced pages, includes more than 50 citations
to the writings of George Washington, Thomas Jefferson, James
Madison, Benjamin Franklin, John Jay, John Marshall, and
others. It cites early legislation from the First Congress and
judicial Presidents dating back to Marbury v. Madison in 1803,
which I have to admit was dicta as well, but is nevertheless
considered a fairly important case.
The clear message is that the Founding Fathers
intentionally excluded Congress from having access to sensitive
military, diplomatic, or intelligence secrets without the
consent of the President.
In 1776, Ben Franklin and the rest of the Committee of
Secret Correspondents of the Continental Congress unanimously
agreed they could not share news of covert French assistance to
the American Revolution because, ``We find, by fatal
experience, that Congress consists of too many Members to keep
secrets.''
By far the most important document in helping the American
people understand the Constitution were the Federalist Papers.
The official journal of the convention and Madison's lengthy
notes were not published for decades. In Federalist No. 64,
John Jay explained that ``Important foreign intelligence
sources would not be willing to confide their information to
the Senate or Congress, but they would be willing to confide in
the secrecy of the President''; and thus, he explained, that
was why the Constitution had left, ``the business of
intelligence,'' to be managed solely by the President, ``as
prudence might suggest.''
When Congress appropriated funds for foreign affairs and
intelligence, year after year it asked the President to account
specifically only for those expenditures from this fund as,
``in his judgment may be made public.''
In 1880, the legendary Henry Clay, Speaker of the House,
declared that it would be improper for Congress to inquire into
how the President spent money from his Secret Service account.
Others echoed the point. No one voiced disagreement.
My prepared statement discusses a number of Supreme Court
cases recognizing this power. The agreement of all three
branches on this issue was so strong that, in 1957, the great
Princeton constitutional scholar, Professor Edwin Corwin, who
was the principal author of the massive congressional document
on the Constitution annotated document, said, ``So far as
practice and weight of opinion can settle the meaning of the
Constitution, it is today established that the President is
final judge of what information he shall entrust to the Senate
as to our relations with other governments.''
I think I am missing page 4, but I think probably my time
is up. I have another 30 seconds.
So these are very important issues. But your oath of office
is also tremendously important. I hope you will look at my
prepared testimony. Don't take my word for it. See the words of
Jefferson and Madison.
Jefferson in one memo to President Washington in 1790
noted, ``Congress was not intended to know the secrets of the
executive branch.''
I think the executive branch proposal for setting up some
sort of machinery within the executive branch so that people
who believe they have a grievance can have a fair hearing, that
is not a problem as long as this is subject to the President's
control.
But just as I don't believe that Congress can get involved
in hearing ongoing cases before the Supreme Court and calling
witnesses and then telling the Court how to decide them because
that is a judicial function, I think it needs to be very
careful in how far it goes in getting in the business of the
executive branch for fear of usurping executive powers.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Turner follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Towns. Mr. Devine.
STATEMENT OF THOMAS DEVINE
Mr. Devine. Thank you. It's an honor to be here with my
colleagues from the Make It Safe Coalition, a nonpartisan,
transideological, good-government network whose mission is
solidarity with whistleblowers. We're part of a growing
movement. About 5 years ago, there used to be 20 groups that
would join the sign-on letters for the Whistleblower Protection
Act; 3 years ago it was 50; last year it was 112; last week it
was 280. This morning, it's 292.
We're all committed to the pledge that President Obama
campaigned on: Best practice, free speech whistleblower rights
for all employees paid by the taxpayers, enforced by full
access to court.
And we want to offer thanks to the Obama administration.
This is the first time in 30 years working on this issue that
the government has asked for our views before the executive
made its decision. That is very refreshing, and we appreciate
it. But we won't be settling for less than justice as the
outcome as much as we're enjoying the process.
Mr. Chairman, this is the fourth time that Congress is
trying to pass a law that was enacted unanimously the first
three times. Very curious situation. What went wrong? Even for
those who are covered, the Achilles heel is no mystery. From
the beginning, it's been due process. From the start, the
problem has been the administrative board, which is a
whistleblower's only chance for a so-called day in court.
The Whistleblowers Protection Act was passed in 1989
because only four whistleblowers had won decisions on the
merits in the 1980's. Well, guess what. It's deja vu all over
again. We've only had three cases where they've won since the
millennium, and only one under the current Chair Neil McPhie.
In 30 years, there has never been a whistleblower who won a
high-stakes--a case involving high-stakes whistleblowing with
national consequences. Never.
Among all of the lawyers that I know, the National Capital
Region--where the most significant jobs are--since 1979, a
whistleblower has never won any case, significant or petty. The
public is the ultimate loser.
Whistleblowers at the FAA tried to challenge the failure to
inspect Southwest Airlines, and they were fired. What happened?
Paralysis last summer in the airports.
A whistleblower at the VA was challenging breakdown in
patient security. He was fired. The Board said, well, he
doesn't have whistleblower rights because he was challenging
mere negligence. Tell that to the millions of patients whose
confidential records were lost last year.
There are very serious consequences, and the causes are no
mystery either. The administrative judges have no judicial
independence. They're not structured or having the resources to
hear complex national cases. This policy is so engrained, their
performance appraisals get lowered if they spend more than 120
days working on a case. They compensate by trivializing or
avoiding the issues.
Something that, in the Senate Judiciary Committee, is a
controversy over multimillion-dollar ghost procurement becomes
at the Merit Systems Protection Board whether someone was fired
for blowing the whistle on drunken office Christmas parties.
Cases involving national consequences are delayed from 3 to
11 years, unlike the normal case of the Board, if there ever is
a hearing. It is very clear: A bush-league forum will not
provide justice for those challenging major league government
breakdowns. My written testimony has many examples of this
phenomenon.
I would like to spend the rest of my time answering the
objections raised by people in the bureaucracy that the
administration is trying to deal with.
The main objection that we have to this process is a
question: Why is it that the only problem we have with
whistleblowers having access to juries involves Federal
employees challenging Federal breakdowns? There are 14
precedents where whistleblowers have jury trials, five laws
passed in the last Congress. Federal employees are the only
ones in the labor force without normal access to jury trials to
enforce their rights. This is completely unacceptable.
We've been told that if they have normal rights, it will be
flooding the courts. Based on extrapolating from the
precedents, there will be about 1/30th new case per year for
each judge to contend with.
We've been told it would be paralyzing. Managers would be
intimidated by these new rights. They'll be afraid to impose
accountability. Look at the facts. It flunks the reality test.
Before the Whistleblower Protection Act was first passed, 175
performance or misconduct-based actions in the prior 3 years; 3
years after, 174. D.C. passed a Jury Trial Whistleblower
Protection Act. The 5 years before it was passed, 220
accountability actions by managers; the 5 years after, 220.
It is time for the President, for any President, and for
Congress to stop listening when bureaucratic managers cry wolf.
Mr. Chairman, it's not too late to turn on the lights in
the bureaucracy. We don't have time for further delay. This law
needs to be passed before stimulus spending gets fully
underway. We hope Congress will act quickly.
Chairman Towns. Thank you very much for your testimony.
[The prepared statement of Mr. Devine follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
STATEMENT OF ANGELA CANTERBURY
Ms. Canterbury. Thank you, Chairman Towns and members of
the committee, for the opportunity to testify in support of
H.R. 1507, the Whistleblower Protection Enhancement Act of
2009. I'm Angela Canterbury, advocacy director for Public
Citizen, Congress Watch Division.
As our country faces challenges of historic proportions,
one reform could save billions of taxpayer dollars and fulfill
the imperative for more transparency and accountability:
authentic whistleblower protections for all employees and
contractors. Whether the issue is stimulus spending, fraud at a
Wall Street firm, prescription drug safety, environmental
protection or national defense, Federal workers must be
empowered to safeguard the public trust. But as we've heard
today, that is unfortunately not the case. A pervasive culture
of secrecy in the Federal Government is fostered by the ease
with which repression and retaliation can be meted out to any
employee who dares to point out wrongdoing.
In 2007, the nonpartisan Ethics Resource Center found that
more than half of the Federal work force observes misconduct on
the job, but only one-quarter reported wrongdoing because the
others feared retaliation. More than 1 out of 10 who did report
experienced retaliation. Not only is it a national disgrace,
but speaking out about wrongdoing is still a risky endeavor.
It's also unsustainable.
As the stakes for public programs and funds have rarely
been higher, whistleblower protections are good government and
good business. Under the False Claims Act, whistleblower
disclosures now account for the majority of fraud recoveries
from dishonest contracts, $1.45 of the $2 billion recovered in
2007 alone.
Since the Whistleblower Protection Act was last reaffirmed,
Congress has passed eight Federal laws, all of which provide
private-sector employees with better protections than those of
Federal employees.
Our current system for protecting Federal whistleblowers is
badly broken and outmoded, not all public employees are
covered, and those who are face a flawed and politicized
administrative process. They lack normal access to court. The
only court authorized to hear the claims of retaliation, the
U.S. Court of Appeals for the Federal Circuit, has a record of
ruling against whistleblowers and eroding the law.
H.R. 1507 would go a long way to restore and modernize the
Whistleblower Protection Act, but it does not go too far. It
does not propose sweeping change, but rather is an essential
update to the policy to ensure functional rights for all
Federal employees and contractors. It closes loopholes created
by bad court decisions and improves due process rights; extends
necessary coverage to contractors, Transportation Security
Administration workers and national security workers, allowing
for a review procedure sensitive to national security concerns;
and provides specific protections to Federal scientists.
Perhaps the most significant update is the addition of the
access to jury trials and more judicial review, granting the
same safety net for Federal workers that Congress has already
granted to millions of private-sector employees. A trial by
jury, though only likely to be used by a small minority, is
essential to ensuring the law will be effective.
Today I offer one suggestion for improving the bill:
ensuring whistleblowers aren't forced into arbitration. This
legislation rightly attempts to nullify forced arbitration for
contract employees; however, on April 1st, the Supreme Court
held in 14 Penn Plaza v. Pyett that employment discrimination
claims brought by union employees can be subject to
arbitration, and its holding may extend to whistleblower claims
as well. This committee can easily remedy this by adding simple
language to the bill.
Like our hard-won civil rights laws, H.R. 1507 serves the
public's interest by skillfully achieving the essential but
delicate balance between the rights of employees and the
effective management of the Federal work force. Public Citizen
strongly endorse swift passage and enactment of H.R. 1507, and
we are not alone. This legislation enjoys tremendous widespread
support from the American people demonstrated not only by the
broad array of supporting organizations, but also by
editorializing of newspapers across the country and by
bipartisan support in the House of Representatives, which has
already passed this legislation twice.
The impressive collection of transpartisan,
transideological groups supporting the bill includes more than
292 and is led by a core group of committed legislative
advocates. Together we've called upon President Obama to
fulfill his campaign promise and support passage of the bill.
It is extremely encouraging to hear so much commonality
between the administration's testimony today and our vision for
credible protections. No President has ever been more
supportive of true whistleblower reform. However, there are
still areas where more discussion is needed to ensure agreement
on an effective policy to achieve the ultimate goal of true
accountability and transparency that we share. Public Citizen
and our partners stand firmly behind H.R. 1507 and completion
of this marathon legislative effort, and we look forward to
working with you, the Senate and the President to finally
restore and modernize the Whistleblower Protection Act.
Thank you.
Chairman Towns. Thank you very much, Ms. Canterbury.
[The prepared statement of Ms. Canterbury follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Towns. Mr. German.
STATEMENT OF MICHAEL GERMAN
Mr. German. Thank you for inviting me to testify in support
of H.R. 1507, the Whistleblower Protection Enhancement Act of
2009. I represent the American Civil Liberties Union, a
nonpartisan organization dedicated to defending the
Constitution.
The ACLU vigorously supports meaningful legal protections
for all whistleblowers, and particularly for employees and
contractors within the Law Enforcement and Intelligence
Communities where abuse and misconduct can have the most direct
consequences to our liberty and our security.
In the weeks leading up to the September 11, 2001,
terrorist attacks, FBI officials denied a New York agent's
request to start looking for a known al Qaeda operative who had
entered the United States in what the 9/11 Commission would
later call ``a clear misunderstanding of the law.'' The agent
sent an angry e-mail warning that, ``someday someone will
die.''
At the same time, an FBI supervisor in Minneapolis, stymied
from pursuing a Foreign Intelligence Surveillance Court order
to search Zacharias Moussaoui's computer by headquarter
officials, who later admitted that they did not know the legal
standard necessary to obtain one, shouted that he was trying to
stop someone from taking a plane and crashing it into the World
Trade Center. These agents clearly knew that gross
mismanagement in the FBI's counterterrorism program posed a
substantial threat to public safety, but neither formalized his
complaint or pushed it up the chain of command. Perhaps, like
one-third of those polled in a 1993 Merit Systems Protection
Board study of the Federal work force who did not report
illegal or wasteful activities they had seen on the job, they
feared retaliation.
After 9/11, President Bush called on the FBI, CIA and other
intelligence agents to report any breakdowns in national
security. And FBI Director Robert Mueller vowed to protect
Bureau whistleblowers. But the record reflects that the few FBI
employees who answered this call, myself, Sibel Edmonds, Jane
Turner, Robert Wright, John Roberts and Bassem Youssef, were
not protected.
The myriad scandals involving the FBI, the CIA and the NSA,
from spying on political activists to warrantless wiretapping
to torture, more than demonstrate the need for more
whistleblowers in the Intelligence Community. The reforms
provided by H.R. 1507 will finally provide real protections to
those brave law enforcement intelligence agents, agency
employees and contractors who are willing to speak out when
waste, fraud or abuse of authority endanger our security and
violate the law.
But as important as what this bill does for our national
security whistleblowers is what it does not do to our national
security. H.R. 1507 does not authorize Intelligence Community
employees to leak classified information to the media or any
other person who does not have the appropriate security
clearances. In fact, by providing safe avenues for agency
employees to report waste, fraud and abuse to the appropriate
authorities and to Congress, there will be less of a need to
anonymously leak information in order to have serious problems
addressed.
I would like to briefly offer two suggestions to strengthen
the bill. First, for the reasons I described more thoroughly in
my written statement, Congress should make explicit the
disclosures made through the normal chain of command do not
lose their protected status. We don't want these protections to
set a trap for responsible agents who report problems through
proper channels.
Second, Congress must make clear that all Members of
Congress have the right, by virtue of their election, to
receive all lawful disclosures of information from CIA, FBI,
NSA and other intelligence agency employees and contractors,
and that those Federal employees and contractors who make
lawful disclosures to any Member of Congress should be
protected under the law.
Congress needs access to information about mismanagement
and misconduct within the Intelligence Community, both
classified and unclassified, in order to perform its
constitutional duty to check abuses of power and to serve their
constituents' interests. Congress cannot perform effective
oversight unless Federal employees and contractors are willing
to tell the truth about what's happening within these agencies,
and it is simply unfair to expect them to tell you the truth if
they know it will cost them their jobs.
Congress should pass H.R. 1507 and extend meaningful
protection to the work force that is charged with protecting us
by granting them full and independent due process rights when
they blow the whistle during government investigations or
refuse to violate the law, enforced through jury trials in
Federal courts once administrative measures are exhausted, with
full circuit court review.
Thank you.
Chairman Towns. Thank you very much for your testimony.
[The prepared statement of Mr. German follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Towns. Mr. Colapinto.
STATEMENT OF DAVID COLAPINTO
Mr. Colapinto. Chairman Towns, members of the committee,
thank you very much for inviting me to testify today on H.R.
1507. My name is David Colapinto. I'm the general counsel of
the National Whistleblowers Center, a nonprofit, nonpartisan
organization in Washington, DC, that supports whistleblowers.
To achieve whistleblower protection, Congress must enact
reforms with full court access for Federal employees. We heard
this morning a proposal by the Department of Justice witness
for an extra-agency board, a new board to hear national
security complaints without access to courts.
Simply put, the district court access for national security
and FBI employees is critical to achieve true reform. Whatever
administrative scheme is devised by Congress, if it is without
district court access, it is doomed to fail. That conclusion is
based on a more than 30-year history that tells us what works
and what does not.
Laws that permit district court access, like H.R. 1507 and
Title VII of the Civil Rights Act, work. Other laws, like the
current Civil Service System that limit remedies through the
administrative process, do not.
For more than 18 years, FBI and intelligence agency
employees have had the right to go to Federal court on claims
of retaliation, go before a jury and seek compensatory damages
under Title VII. That exists today. They can also go to
district court under the Privacy Act and seek damages. They can
go to district court for pre-enforcement injunctive relief to
remedy constitutional violations.
Under all of these laws, district court access for national
security and FBI employees does not air details of national
security programs. It just doesn't happen in our Federal
courts. Likewise, H.R. 1507, as it is constructed, would pose
no risk to national security under the district court access
provisions.
Where national security is related to a case, district
courts have many protective measures available to prevent
disclosure of classified information. For example, under Title
VII national security agency cases, Federal courts have used
pseudonyms and protective orders to protect national security
information. Other protective measures are already in existence
within the Rules of Civil Procedure and the Rules of Evidence,
where Federal courts routinely use in-camera proceedings in
order to protect the disclosure of classified information.
More importantly, with respect to this legislation, there
is nothing in H.R. 1507 that permits either an employee or the
Federal court to reveal classified information. In fact, the
bill is constructed to expressly authorize the agency to
withhold classified information.
This issue was studied back in the mid-1990's when it was
requested--a GAO report was requested by the former Post Office
and Civil Service Committee of the House. The report was issued
in 1996, and it found that intelligence agencies already have
in place numerous safeguards to protect classified information
and national security interests in employees' Federal court
cases and in jury trials in Title VII cases.
The GAO concluded if Congress wants to provide CIA, NSA,
and DIA employees with standard protections that most other
Federal employees enjoy, it could do so without unduly
compromising national security. And here's a copy of the
report, which is publicly available on the Internet, and I urge
anyone interested in this issue to read it, because the GAO
conducted an audit and determined that information on sensitive
intelligence operations can be converted into unclassified,
publicly available documents.
Intelligence agency adverse action files contain generally
no national security information. The files reviewed by GAO at
the DIA and the NSA, actually 98 percent of those files
contained no such information. And that is the case file that
is used to process the employee termination or discipline case.
GAO reviewed case files in Federal courts and found
declassified and redacted documents were capable of providing
sufficient information to litigate the cases for both the
agency and the employee.
The conclusion, based on 30 years of history and 18 years
under Title VII, is clear the administrative process alone
won't work. Under the current system, I can tell you what
happens. You heard from Ms. Greenhouse earlier, and it happens
repeatedly by lawyers who represent Federal employees, when
they come into the office, it has become standard for attorneys
to have to tell Federal employees and advise them that filing
the whistleblower claim is futile. Statistics bear that out: 95
to 99 percent failure rate. To be honest with your clients, you
have to tell them you have a 95 to 99 percent chance of losing
your case. And nothing is more demoralizing than having to tell
a client, particularly a dedicated Federal employee,
particularly employees who work at national security or the FBI
agencies, that remaining silent and not fighting retaliation is
their best legal option. That won't change unless we have
district court access for employees, including national
security and FBI employees.
And I thank you very much.
Chairman Towns. Thank you very much, Mr. Colapinto.
[The prepared statement of Mr. Colapinto follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Towns. We've been joined by Congressman Cummings
from Maryland as well.
Mr. Fisher, do you see a significant difference in the
position taken by the current administration in today's
testimony and the historical position you outlined?
Mr. Fisher. My concern is that if you look at Justice
Department positions over the years, they will say the
President has exclusive control over national security
information. Even though you and other Members have clearance,
you don't have a need to know, and they can block you.
I see that, frankly, in what was said today, because when
the Justice Department testified today after talking about
President Washington, the Justice Department then refers to
testimony back in 1998 with regard to congressional oversight.
And this is a quote from today's testimony from the Justice
Department: The Constitution ``does not permit Congress to
authorize subordinate executive branch employees to bypass
these orderly procedures for review and clearance by vesting
them with a unilateral right to disclose classified information
even to Members of Congress.''
So if I read that correctly--and I think it's underscored
by their idea of some sort of entity within the executive
branch to review that. And I think what they are saying is that
employees in the agency have no right to come here. They do
under the 1998 CIA Whistleblower going to the Intelligence
Committees, but other than that I think--I don't see the
change.
I think they decided today not to expressly talk about
constitutional issues as they have in the past. But I don't see
the change.
Chairman Towns. Mr. Turner, do you have a comment on that?
Mr. Turner. I think Dr. Fisher is right. I think they are
doing what OLC and the executive branch has done throughout our
history, and that is trying to uphold the Constitution, which,
as it has always been interpreted, gives the President final
decision on classified information. And I think they, as a
matter of policy, they may well prefer this, but I think they
have a duty to the Constitution just as members of this
committee do.
Chairman Towns. Thank you very much.
Mr. Devine, you mentioned in your testimony the importance
of jury trials for Federal employees, yet it is our
understanding that very few of the employees will ever exercise
that option because of the expense of bringing the case to
Federal court. If that is the case, why is this right so
important?
Mr. Devine. Well, Mr. Chairman, first, it matters because
this is very much a litmus test of the President's credibility
on transparency issues. He pledges full access to court, and it
will be difficult to take those commitment serious if he leaves
Federal workers as the only ones without normal court access.
But the main reason--and it far transcends the current
administration--is the high-stakes cases that are the primary
reason the Whistleblower Protection Act is passed, there is no
chance for justice at the Merit Systems Protection Board. The
ultimate point of the law, and why ours has the unanimous
mandate, is not just the congressional commitment to be fair to
government workers, it's the impact on the public. And the
Board, the Merit Systems Protection Board for 30 years has
rubber-stamped termination of anyone who challenged a
significant government breakdown.
I'll just give you some examples of the sophistry here. A
Federal air marshal in a week with his whistleblowing blocked
the Transportation Security Administration from removing air
marshal coverage on cross-country flights during the hijacking
alert. They basically they had blown their budget on
contractors, and they wanted to get back to even by canceling
the air marshals on these flights during an alert. The
whistleblower stopped them. He was fired for it.
It's taken him 3 years. He hasn't gotten a hearing. And
currently the issue in the case is the preliminary ruling that
he's not covered by the Whistleblower Protection Act, and that
is because a loophole in the law is that it doesn't allow
public disclosures of information whose release is specifically
prohibited by statute.
The Merit Board, it said, well, TSA was authorized by
Congress to issue regulations. So when TSA issued a regulation
that imposed blanket secrecy, virtually ending any public
whistleblowing, that qualified as a specific statutory
prohibition.
Now every agency in the government has that authority, and
if this decision sticks, it means the Whistleblower Protection
Act rights will only exist to the extent that they are not
contradicting agency regulations--that is hopeless--as a shield
for government accountability.
The bottom line is for whistleblowers seeking justice in
serious breakdowns of government service, the MSPB is the
Twilight Zone.
Chairman Towns. Thank you very much.
I yield 5 minutes to the gentleman from Maryland Mr.
Cummings.
Mr. Cummings. I was at another hearing.
Thank you very much, Mr. Chairman, and thank you for
holding this hearing.
I think it's extremely important that we do everything in
our power to protect whistleblowers. We had a case in Maryland
which I got involved with where we had at one of our hospitals
someone who blew the whistle on her superiors who knew that
AIDS tests, HIV/AIDS, and hepatitis B tests were being
administered by faulty machinery. I'm talking about hundreds of
them. And all of it was hush-hush. And this happened about 4 or
5 years ago. And by doing what she did, I believe that she
saved a lot of lives.
I think that when we look at--going back to your comments,
Mr. Devine, it is so very important that we have transparency.
Mr. Barofsky, the Special IG for TARP, told us in another
hearing that he expected numerous cases--if I remember
correctly, he said hundreds of them coming out of this TARP
situation.
And so I think that--I often say that a lot of times we
don't act when we ought to act, and then something happens, and
then we look back and said we wish we had. And, Mr. Chairman, I
think that this is one of those times where we're going to have
to act. And I know there are some that may disagree, but the
fact is that I think America has called out for transparency
and is--I've often heard it said that one of the greatest
things that you can do is to shine a light so that all can see
to address this whole issue of the kinds of problems that can
come up in government. And one of the things I've also noticed
is in some instances it's almost impossible to find out certain
information unless you do have a whistleblower.
And going back to what you were saying, Mr. Colapinto, you
know, some kind of way we also have to figure out how to put
people in a position where they feel comfortable even coming
forward and that they will not be harmed themselves. Other than
that, you might as well throw this--I mean, if we have that
kind of situation where they feel threatened, then it--you
won't get that kind of response.
And in Baltimore, we have a situation now where there is no
cooperation. We have literally about 20 percent of our most
serious cases, like murders and whatever, not going to trial.
Why? Because of witness intimidation. Why? Because they believe
they are going to be harmed. It's a second cousin to this, but
it's the same kind of concept.
In order to address the ailments of our society, a lot of
times you've got to have--matter of fact, most of the time
you've got to have the cooperation of people.
So I just have one question to all of you. One of the
arguments that opponents of expanding whistleblower protection
is we will give a forum to people who just want to complain
about management or, worse, are vindictive against their
employer and want to get even.
I want you to respond to those critics, and I know there
are several systems in place to weed out legitimate claims from
the others, and I would just like to know how do we address
that?
Mr. Devine. Congressman, that is an objection that can be
made to every right that Congress ever legislates. Every right
can be abused. But you folks make a balancing test whether the
benefits to the public outweigh the risk for the potential to
abuse. I can't think of any legislation where the balancing
test is more in favor or the rights than with whistleblowers.
The benefits to the public are incredible. We've increased our
recovery rate under the False Claims Act by almost 200 times
annually by enfranchising whistleblowers.
The issue is probably going to come down to a question of
fear. What we hear over and over again is that emboldened
whistleblowers--if they have normal rights, emboldened
whistleblowers will bully their managers so they will be afraid
to impose accountability when it's needed. Now, the solution to
that probably is to hire managers who aren't afraid to exercise
their authority. That is not a reason for secrecy.
But the fear that we've got without this law is secrecy
enforced by repression. When there are abuses of power that
betray the public, that is the kind of really dangerous fear we
have. And it's because of that fear that problems such as
domestic surveillance turn into a blanket violation of
constitutional rights instead of being nipped in the bud; that
torture becomes almost a tradition because it wasn't challenged
in a timely manner when we first started straying from the
Geneva Convention. That is how little problems turn into
disasters, because people are afraid to challenge illegality.
So we don't have a whole lot of respect for the argument
that we can't give people rights because they might scare the
power structure.
Chairman Towns. As we have seen from today's hearing,
whistleblowers play a vital role in promoting government
accountability and transparency. This has been an informative
meeting, and I look forward to working with the administration
and the Senate to enact the bill.
I would like to ask unanimous consent that a number of
written statements that we receive be submitted for the record.
And without objection, the committee stands adjourned. And
let me thank the witnesses for their testimony. We look forward
to working with you as we move forward. Thank you so much.
[Whereupon, at 1:45 p.m., the committee was adjourned.]
[The prepared statement of Hon. Bruce Braley and additional
information submitted for the hearing record follow:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]